Labor and Agents

he NFL Players Association agreed that WilmerHale, the law firm that employs one of the neutral arbitrators in the NFL’s performance-enhancing substances policy, could continue to represent the NFL, NFL owners and league personnel under the terms of the arbitrator’s engagement.

The information was included in a sworn declaration by Heather McPhee, NFLPA associate general counsel, filed in a lawsuit late last month and pertains to James Carter, the neutral arbitrator and senior counsel at WilmerHale.

Philadelphia Eagles offensive tackle Lane Johnson is suing the NFLPA and the NFL and asking a judge to overturn a 10-game suspension that the league imposed on him for violation of the PES policy. Carter upheld the decision as the arbitrator in the case. Carter himself has not worked on an NFL-related case for his firm, but WilmerHale’s NFL-related work and whether that constitutes a conflict of interest that was properly disclosed to Johnson is one of the central issues in the case.

The NFL Players Association won the right for neutral arbitration for performance-enhancing substances cases in collective bargaining in 2014. In June 2015 the NFL and the NFLPA jointly agreed on Carter to act as one of the arbitrators.

McPhee, in her declaration, said she participated in an interview of Carter at the NFL’s offices in New York in April 2015.

“I recall Arbitrator Carter stating that WilmerHale represented the NFL in certain business transactions, but none of these matters were related to any player issues, and that he did not work on these matters,” McPhee stated. “Arbitrator Carter also stated that he would be walled off from any matter in which WilmerHale represented the NFLPA or NFL (including related parties, such as NFL teams and NFL owners).”

Johnson, in his declaration, said, “I never received any sort of conflict of interest disclosure from arbitrator James Carter.”

U.S. District Judge Richard Sullivan is hearing the case. It’s not clear when he might rule, but final papers were scheduled to be submitted by attorneys last week.

Stephen Zashin, Johnson’s attorney, noted that the NFL retained WilmerHale and former partner Robert Mueller, the former FBI director, to investigate the league’s handling of the Ray Rice incident. Mueller resigned from WilmerHale in May, when he was named special counsel to investigate Russia’s alleged interference in the 2016 presidential election.

Other new filings in the case revealed that WilmerHale was advising the NFL on an ownership matter in December 2016, two months after Carter heard Johnson’s appeal.

“If you truly believe in neutral arbitration, why would you agree to an arbitrator who works for a law firm that works for the NFL?” Zashin asked rhetorically.

The NFL declined to comment for this story. The NFLPA did not reply to requests for comment. Carter said in an email he could not comment.

The NFL, in court papers, noted that a reasonable person would not look at Carter’s association with WilmerHale and conclude that he was partial to the NFL, “particularly in light of the fact that Johnson’s union agreed to his appointment fully aware of that association.”

The NFLPA in its court papers noted that Carter is on the board of directors of the New York International Arbitration Center and chaired the American Bar Association’s section of International Commercial Arbitration. “Carter’s qualifications are beyond reproach,” the NFLPA said.